Limits on Private-sector Collection and Use of Data - Telecommunications & Marketing (5 of 5)

Question 1

Telemarketing Sales Rule (TSR) and the Telephone Consumer Protection Act of 1991 (TCPA)

Answer 1

The first enactment of laws limiting unsolicited and automated telemarketing for both telephone and fax communications. Most notably creates a private right of action for those receiving unsolicited faxes, carrying a $500 fine per violation and any damages sustained because of the fax.

Question 2

The Do-Not-Call Registry (DNC)

Answer 2

Best known TSR requirement. It provides a means for US residents to register residential and wireless phone numbers that they do not wish to be called for telemarketing purposes.

Question 3

What does the DNC require sellers and telemarketers to do?

Answer 3

• Access the registry prior to making any phone-based solicitations
• Update their call lists every 31 days with new registry information

Question 4

Who does the TCPA and DNC apply to?

Answer 4

For profit organizations and charitable solicitations placed by for profit tele-funders

Question 5

DNC Violations

Answer 5

Violations can lead to civil penalties up to $40,000 per violation, nationwide injunctions, and payment of redress to injured customers

Question 6

Existing EBR Exception

Answer 6

• When the customer has purchased, rented, or leased the seller’s goods or services (or completed a financial transaction with the seller) within 18 months preceding a telemarking call. The 18-month period runs from the date of last payment, transaction, or shipment between the consumer and the seller
• When a prospect has made an application or inquiry regarding the seller’s goods or services. This EBR runs 3 months from the date of the person’s inquiry or application

Question 7

What does the TCPA not affect?

Answer 7

• Political calls
• Charitable gifts
• Debt collectors
• Surveys

Question 8

Telemarketing Safe Harbor

Answer 8

• Have written procedures
• Train personnel on those procedures
• Monitor and enforce compliance
• Maintain internal do not call list
• Download the national registry every 31 days
• Only violate by error

Question 9

Other TSR Requirements

Answer 9

• Call only between 8 am and 9 pm local time to recipient
• Display valid called ID information
• Identify themselves and the purpose of their call
• Connect to a live person within 2 seconds
• Robocalls, auto dialers, and automated text messages are only permitted with the express consent of customers

Question 10

Combating the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM)

Answer 10

Created rules for how legitimate organizations send emails, including clear identification of the sender and a simple unsubscribe or opt-out.

Question 11

Categories of Email Messages

Answer 11

1. Commercial - messages that advertise or promote a commercial product or service
2. Transaction – Messages that facilitate or confirm a transaction the recipient has already agreed to
3. Other – messages that are not commercial, transactional, or relationship

Question 12

Transactional/Relationship Messages

Answer 12

1. Facilitates or confirm a transaction
2. Provide warranty, recall, safety or security information
3. Give information about changes in terms of an existing account
4. Provide information about the employment relationship
5. Deliver goods or services

Question 13

CAN-SPAM Rules

Answer 13

1. Don’t use false or misleading header information
2. Don’t use deceptive subject lines
3. Identify the message as an advertisement
4. Tell recipients where you’re located
5. Provide opt-out instructions
6. Honor opt-out requests promptly
7. Monitor what others are doing on your behalf

Question 14

The Junk Fax Prevention Act of 2005

Answer 14

Summary:

i. Prohibits sending unsolicited advertisements by fac
ii. No exception for accidental transmissions
iii. Fines of $500 per page for violations
iv. Fines of $1,500 per page for knowing it is unlawful
v. Consent to receive faxes is implied by an existing business relationship

Detail:
Creates the EBR exception to the US Telephone Consumer Protection Act’s ban of fax-based marketing without consent but contains a requirement that all marketing faxes be accompanied by instructions on how to opt out of further unsolicited communications

Question 15

EBR Consent Requirements under JFPA

Answer 15

o Voluntary provision of fax number
o Opt out instructions
o Contact information
o Clear and conspicuous notice

Question 16

Telecommunications Act of 1996 and Customer Proprietary Network Information (CPNI)

Answer 16

Governs the privacy of customer information provided and obtained by the telecommunications carriers. Established Customer Proprietary Network Information (CPNI) restrictions. CPNI is information collected by telecommunication carriers related to their subscribers. The 2007 CPNI order established opt-in/opt-out requirements and requires carriers to (1) notify law enforcement when CPNI is discussed in a security breach within 7-days of that breach and (2) customers must provide a password before they can access their CPNI via telephone or online account services

Question 17

Customer Proprietary Network Information (CPNI)

Answer 17

Information related to a subscriber’s use of a telecommunications service

Question 18

CPNI permitted uses

Answer 18

1. Communications with customers
2. Billing and collections
3. Customer service
4. Fraud prevention
5. Court order or emergency

Question 19

Pre-Texting Security

Answer 19

1. Require a password or ID

2. Notify customers of account changes

Question 20

Cable Communications Privacy Act of 1984 (CCPA)

Answer 20

Summary:

i. Cable operators may not collect PII without consent unless it is necessary to provide service
ii. Providers may not disclose information about consumers unless necessary to provide service
iii. CCPA Privacy Notices
iv. Cable operators must provide consumers with access to PII
v. PII must be destroyed when no longer needed for its intended purposes
vi. CCPA includes a private right of action

Detail:
Protects the personal information of customers of cable service providers. It incorporates the provisions of the OECD Privacy Guidelines (1980), thus providing a model of a comprehensive privacy statute. At the same time, it also represents an example of US sector-by-sector approach to privacy law.

Question 21

Video Privacy Protection Act of 1988 (VPPA)

Answer 21

Established that videotapes are prohibited from disclosing customer PI unless an enumerated exception applies.

Note: VPPA does not preempt state law

Question 22

VPPA Permitted Disclosures

Answer 22

1. To the consumer
2. With consumer’s consent
3. Pursuant to court order or warrant
4. To carry out normal business of the provider

Question 23

Video Privacy Protection Act Amendments Act of 2012 (H.R. 6671)

Answer 23

Amends provisions of the federal criminal code authorizing a video tape service provider to disclose personally identifiable information concerning any consumer to any person with the informed, written consent of the consumer to: (1) allow such consent to be provided through an electronic means using the Internet; (2) require such consent to be in a form distinct and separate from any form setting forth other legal or financial obligations of the consumer; (3) allow such consent to be given in advance for a set period of time, not to exceed two years or until consent is withdrawn by the consumer, whichever is sooner; and (4) require the video tape service provider to provide an opportunity for the consumer to withdraw such consent on a case-by-case basis or to withdraw from ongoing disclosures, at the consumer’s election.

Question 24

Digital Advertising Alliance

Answer 24

A non-profit organization that sets standards for consumer privacy, transparency, and control in online advertising.